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Choate v. Lane

United States District Court, D. Nevada

January 3, 2018

STEPHEN CHOATE, Plaintiff,
v.
ROBERT LANE, et al., Defendants.

          ORDER APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC NO. 1) AND COMPLAINT (EFC NO. 1-1)

          Cam Ferenbach, United States Magistrate Judge

         Before the Court are Plaintiff Stephen Choate's application to proceed in forma pauperis (ECF No. 1) and complaint (ECF No. 1-1). For the reasons stated below, Choate's in forma pauperis application is granted. The Court, however, orders that Choate's complaint be dismissed without prejudice.

         Discussion

         Plaintiff's filings present two questions: (1) whether Choate may proceed in forma pauperis under 28 U.S.C. § 1915(e) and (2) whether Choate's complaint states a plausible claim for relief. Each is discussed below.

         I. Whether Plaintiff May Proceed In Forma Pauperis

         Choate's application to proceed in forma pauperis is granted. Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to pay such fees or give security therefor.” According to Choate's affidavit, he is incarcerated, he does not receive money from any outside source, and his inmate balance would not cover the filing fees. (ECF No. 1 at 1-3). Choate's application to proceed in forma pauperis is, therefore, granted.

         II. Whether Choate's Complaint States a Plausible Claim

         A. Legal Standard for Reviewing the Complaint

         Because the Court grants Choate's application to proceed in forma pauperis, it must review Choate's complaint to determine whether the complaint is frivolous, malicious, or fails to state a plausible claim. 28 U.S.C. § 1915(e)(2)(B). Federal Rule of Civil Procedure 8(a) provides that a complaint “that states a claim for relief” must contain “a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” The Supreme Court's decision in Ashcroft v. Iqbal states that to satisfy Rule 8's requirements, a complaint's allegations must cross “the line from conceivable to plausible.” 556 U.S. 662, 680 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, (2007)).

         “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). If the Court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

         B. Statute of Limitations

         Choate brings a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1-1 at 1). Choate states his constitutional rights were violated between “2013-2017.” (Id. at 1). Choate does not give any more specific dates regarding his allegations. In Nevada, the applicable statute of limitations for 42 U.S.C. § 1983 claims is two years. Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989) (per curiam); Abram v. City of Reno, No. 315-cv-00029-MMD-WGC, 2015 WL 5829886, at *3 (D. Nev. Oct. 6, 2015). The statute of limitations may be tolled in certain circumstances. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995); Seino v. Emp'rs Ins. Co. of Nev., 111 P.3d 1107, 1112 (Nev. 2005).

         Based on the vague allegations regarding the timing of Defendants' actions, the Court cannot determine whether Choate's claims are time-barred. Therefore, Choate's complaint is dismissed without prejudice. Choate must file an amended complaint stating what actions took place within the two-year time frame preceding December 11, 2017 (the date Choate filed his application for leave to proceed in forma pauperis) or an explanation of why tolling would apply. The amended complaint must be “complete in itself, including exhibits, without reference to the superseded pleading.” LR 15-1.

         Though the Court has dismissed each of Choate's claims with leave to amend, the Court will also provide further guidance ...


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